SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2010, Issue No. 36
May 5, 2010

Secrecy News Blog: http://www.fas.org/blog/secrecy/

EPA SAID TO HAVE SUPPRESSED, MISCLASSIFIED RECORDS

Officials of the Environmental Protection Agency intentionally stopped keeping records concerning potentially hazardous landfills in New Mexico in order to circumvent the disclosure requirements of the Freedom of Information Act. They also marked unclassified records as "confidential" in order to restrict their dissemination, a report from the EPA Inspector General found.

One EPA official told the IG that "her section discontinued record keeping in favor of undocumented phone calls and conversations ... to prevent the production of documents.... [She] informed us that her section had discontinued record keeping... because of ... requests for information under the Freedom of Information Act" that had been filed by Citizens Action New Mexico, a public interest group investigating potential contamination of Albuquerque's groundwater.

The Inspector General report said that failure to document agency activities is a violation of EPA policy and federal law, which require the preparation and preservation of "adequate and proper" records of agency functions, decisions and transactions.

Another EPA official "withheld [a document] from the public by marking it Confidential, a security classification category" even though it "contained no classified information." Officials said they only meant to indicate that the document was a deliberative draft, not that it was classified. But the IG said that too is a violation of agency policy, which prohibits the use of classification markings on unclassified records.

The Inspector General said that because of defective record keeping, it was unable to determine whether EPA oversight of the New Mexico landfills was actually satisfactory or not.

In a response to the IG, the regional EPA office firmly "denied its staff took inappropriate steps to withhold information from the public." But the EPA response "did not address evidence presented in the report that ... staff intentionally stopped documenting discussions to avoid responding to the public's FOIA requests," the IG countered.

The EPA also replied that "the term 'confidential' is commonly used throughout the Agency for many documents" and does not imply that the documents are classified. But if so, this practice is "in violation of EPA security policies," the IG said, since the "confidential" label is strictly reserved for classified records.

In a lengthy reply appended to the IG report, the regional EPA office said it did not concur with the findings or the recommendations of the Inspector General, and that local EPA officials had done nothing wrong. Because of the non-concurrence and the resulting impasse, the issue will be elevated to the EPA deputy administrator for resolution.

See "Region 6 Needs to Improve Oversight Practices," Office of Inspector General, U.S. Environmental Protection Agency, April 14, 2010:

The IG report was first reported by John Fleck of the Albuquerque Journal on April 16, and was also covered by Superfund Report on May 3.

From a secrecy policy point of view, the new report illustrates the potential for active Inspector General oversight of agency classification practices, but also the possible limitations of such oversight. The IG pursued its mandate fearlessly and relentlessly, and presented its conclusions forthrightly, even though they were unwelcome to the agency. On the other hand, the IG investigation did not succeed in resolving the issues it raised, at least not yet. Worse, "the estimated cost of this report... is $272,846," the 28-page IG report stated, which is equivalent to an astounding and unsustainable $10,000 per page.

AFTER A SIX YEAR DECLASSIFICATION REVIEW, A NEW FRUS VOLUME

The latest volume of the official "Foreign Relations of the United States" (FRUS) series was published by the State Department yesterday on the topic of Korea, 1969-1972. It covers U.S. relations with the Republic of Korea as well as disputes with North Korea during the Nixon Administration.

Remarkably, declassification of the 489-page FRUS volume took no less than six years.

"The declassification review of this volume, which began in 2003 and was completed in 2009, resulted in the decision to withhold 1 document in full, excise a paragraph or more in 5 documents, and make minor excisions of less than a paragraph in 17 documents," according to the Preface of the new volume. Another FRUS volume on Japan during the same period also entered declassification review in 2003, but has still not emerged into the light of day.

This is no way to run a history program, historians and archivists agree. But without profound changes in declassification procedures the current backlog of records awaiting declassification is going to grow, not shrink, said Michael J. Kurtz of the National Archives. The Archives typically processes 11 million pages per year for declassification, Mr. Kurtz told the Public Interest Declassification Board on April 22, but it takes possession of an additional 15 million pages of classified records each year, for a net increase in classified historical files.

In December 2009, President Obama ordered that the backlog of more than 400 million pages of 25 year old classified records must be declassified and made publicly available by the end of December 2013. Meeting that deadline will require the new National Declassification Center to increase the current declassification capacity tenfold to 100 million pages per year, Mr. Kurtz said. To achieve this ambitious goal, the Archives is subjecting its declassification practices to a "business process reengineering" review that is supposed to eliminate repetitious, wasteful or counterproductive declassification activities and improve productivity.

GROUPS THANK SECDEF FOR UNCLASSIFIED NPR, STOCKPILE DATA

Leaders of more than a dozen public interest organizations and professional societies wrote to Defense Secretary Robert M. Gates to applaud two recent achievements in nuclear weapons transparency: the publication of the Nuclear Posture Review Report for the first time in unclassified format and the disclosure of the size of the U.S. nuclear stockpile.

"We believe that the public release of the unclassified NPR Report is a significant and long-overdue step in the maturation of our national nuclear policy," the public interest groups wrote. "Release of the unclassified NPR Report will not resolve the continuing debate over the future of nuclear weapons policy, but it will enable it to proceed on a more informed basis."

"Similarly, the declassification of the current nuclear stockpile is an historic milestone both in nuclear weapons policy and in classification policy.... We believe this disclosure will serve to strengthen what should be an international norm of increasing transparency on nuclear matters. By leading through example, we hope the U.S. action will elicit a response in kind from other nuclear nations."

"We also look forward to further steps, including the Department's future implementation of the Fundamental Classification Guidance Review that was required by the President's executive order.... This initiative should help to eliminate other obsolete or unnecessary classification restrictions."

The May 4 letter was coordinated by OpenTheGovernment.org. A copy is posted here:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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